At a jury trial defendant was convicted only of the petty disorderly offense of "disorderly conduct ─ mutual fighting," in violation of N.J.S.A. 2C:33-2a(1), as a lesser-included offense on count one.*fn1

Defendant was sentenced to probation for one year with conditions. Fines and penalties were also imposed. On this appeal defendant argues:

POINT I. THE TRIAL COURT ERRED IN CHARGING DISORDERLY CONDUCT AS A LESSER-INCLUDED OFFENSE. THE INCIDENT BETWEEN DEFENDANT AND THE ALLEGED VICTIM OCCURRED WITH NO ONE ELSE WITHIN SIGHT OR EARSHOT. (Not raised below)

POINT III. THE DISORDERLY-CONDUCT STATUTE IS UNCONSTITUTIONAL BECAUSE THE PHRASE "TUMULTUOUS CONDUCT" IS VOID FOR VAGUENESS. (Not raised below)

In its responding brief, the prosecutor states:

POINT I. THE STATE CONCEDES THAT THE TRIAL COURT ERRED IN CHARGING DISORDERLY CONDUCT AS A LESSER INCLUDED OFFENSE.

The State agrees with defendant that the facts in the record do not contain sufficient evidence to support a charge of disorderly conduct. Thus, defendant's conviction should be reversed and the charge dismissed.

POINT II. THE COURT'S JURY CHARGE ON DISORDERLY CONDUCT WAS ERRONEOUS.

The State agrees with defendant that the charge on disorderly conduct was deficient, although given the State's concession regarding Point I, the issue appears moot.

We appreciate such candor when appropriate. Given the position of the State, we find no basis for comment on the conviction or issues raised. We expressly do not do so with respect to the third point. We add only that fighting by mutual consent, N.J.S.A. 2C:12-1a, was not charged to the jury.

We presume, given the date of the sentence and briefing in this case, that the sentence was fully executed before the State made its concession, or otherwise a motion for stay or summary disposition would have been filed.

The matter is remanded for entry of an appropriate judgment.

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